Gemini Towers [2002] QBCCMCmr 174 (4 April 2002)

DJ ReardonREFERENCE: 0697-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14084
Name of Scheme:	Gemini Towers
Address of Scheme:	23 - 27 Griffith Street NEW FARM QLD 4005

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Ira Smith, the Owner of Lot 25


I hereby order that the application for the following order of an adjudicator, quote- “I seek an order for the committee of the body corporate of Gemini Towers to meet with me before a mediator for the purpose of resolving what I consider to be the unreasonable withholding of approval for me to keep my companion pet in the apartment which is my home”
is dismissed.
DJ Reardon 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0697-2001

“Gemini Towers” CTS 14084

1. Order Sought

The applicant, the Owner of Lot 25, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote-

“I seek an order for the committee of the body corporate of Gemini Towers to meet with me before a mediator for the purpose of resolving what I consider to be the unreasonable withholding of approval for me to keep my companion pet in the apartment which is my home”

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

a) a claimed or anticipated contravention of the Act or the community management statement; or

b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

The community management statement for the “Gemini Towers” community titles scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2. Mediation

In this dispute resolution application, the applicant has sought an order requiring the committee to attend a mediation session for the purposes of resolving a dispute about an animal being kept on scheme land by the applicant.

At the outset, I wish to state that I do not consider that I have authority to order in the terms sought by the applicant.

As part of the dispute resolution process prescribed by Chapter 6 of the Act, the Commissioner for Body Corporate and Community Management (“the Commissioner”) may make case management recommendations to resolve dispute resolution applications made under the Act. Specifically, the Commissioner may recommend that a dispute be resolved by Dispute Resolution Centre mediation, specialist mediation, departmental adjudication, or specialist adjudication.

It is important to note that participation in both Dispute Resolution Centre mediation, and specialist mediation is voluntary for the parties. In this case, it appears that the applicant has approached the Dispute Resolution Centre directly, however a mediation session has not been conducted.

After considering the application and written submissions, the Commissioner decided that this application should be determined by departmental adjudication. In my view, it is the role of an adjudicator to consider making an order regarding the subject matter of the dispute in accordance with section 223 of the Act. Once a matter is referred to an adjudicator, I do not consider that is for an adjudicator to order that an alternate form of dispute resolution take place.

For this reason, and due to the fact that mediation in the context of community titles disputes is a voluntary process, I do not intend to order that the committee participate in mediation. As a result, I intend to dismiss the application for an order as sought by the applicant.

Further, I do not intend to make orders either permitting the applicant to keep the animal in question, or requiring the applicant to remove the animal, as these types of orders have not been sought in the application. While I acknowledge that I am not strictly limited to considering orders as sought by an applicant, I am reluctant to make orders that are not sought in the application, and about which affected parties have not had specific notice of, or had the opportunity to properly consider and make submissions about.

However, I do intend to provide information on the by-laws that apply to the scheme, and the approach of adjudicators, and previously referees, in respect of disputes about animal by-laws. If there continues to be a dispute regarding the keeping of an animal on scheme land, it will be for an affected party to make a further application to this office, perhaps seeking a specific order that the animal in question be removed, or alternatively that the animal in question be permitted to be kept on scheme land.

3. By-laws

At the time of registration of the building units plan creating the “Gemini Towers” body corporate, the Building Units Titles Act 1965 (“the 1965 Act”) was in operation.

The 1965 Act contained a First and Second Schedule, which contained by-laws that applied to bodies corporate. However, the 1965 Act allowed bodies corporate to amend, repeal and make additions to these by-laws. The First Schedule by-laws related to the duties of the body corporate, committee and proprietors, as well as general meeting procedures. The Second Schedule by-laws dealt with building reputation, noise and animals.

Specifically, by-law 2 of the Second Schedule of the 1965 Act provides the following.

2. A proprietor shall not keep any animals on his unit or the common property after notice in that behalf from the council.

(the term ‘council’ refers to the body corporate committee)

The Building Units and Group Titles Act 1980 (“the 1980 Act”) commenced on 3 November 1980, and contained a number of by-laws in the Third Schedule. However, the Third Schedule by-laws of the 1980 Act did not automatically apply to schemes existing before the commencement of the 1980 Act. Rather, the transitional provisions provided that for those existing schemes, the by-laws in force before 3 November 1980 continued in force for the scheme, provided the by-laws were not inconsistent with provisions of the 1980 Act (other than the Third Schedule). The by-laws in the Third Schedule of the 1980 Act only applied to the scheme if they were not inconsistent with the existing by-laws for the scheme. It is important to note that under the 1980 Act, bodies corporate were still able to amend, repeal and make additions to the by-laws for the scheme.

The 1980 Act contains provisions specifically dealing with matters contained in the First Schedule by-laws of the 1965 Act. As a result, the provisions of the 1980 Act apply to bodies corporate in preference to the by-laws in the First Schedule of the 1965 Act. Similarly it appears that the by-laws concerning noise and building reputation have also been superseded by the 1980 Act.

In summary, the by-laws for a scheme created under the 1965 Act and continuing under the 1980 Act were-

•	The Second Schedule animal by-law unless there has been an amendment, addition or repeal of the by-law (which should now be recorded by the registrar),
•	The Third Schedule by-laws of the 1980 Act, which are not inconsistent with the applicable by-laws of the Second Schedule of the 1965 Act, and which have not been repealed or amended, and recorded by the registrar, and
•	Any other by-laws that have been recorded by the registrar.

The current Act (the Body Corporate and Community Management Act 1997), commenced on 13 July 1997. In summary, the by-laws in effect at 13 July 1997 continue to apply to the scheme unless the body corporate consents to, and the registrar records, a new community management statement for the scheme recording a change in the by-laws.

In this application a dispute has arisen concerning the keeping of an animal on scheme land. I have reviewed departmental records and have been unable to locate any by-laws concerning animals which have been recorded for the “Gemini Towers” scheme. As a result, I consider that the original by-law contained in the Second Schedule of the 1965 Act is the current by-law concerning animals for the “Gemini Towers” scheme, that is-

2. A proprietor shall not keep any animals on his unit or the common property after notice in that behalf from the council.

4. Approach of referees and adjudicators concerning animal by-law disputes

At this point, I would like set out what has been the general approach of adjudicators, and previously the Referee, regarding disputes involving animal by-laws.

General practice is to either order compliance with the by-law (where removal is sought by the body corporate) or to dismiss the application (where an owner wants the committee's refusal overturned), except where the owner can establish one of two things to the satisfaction of the adjudicator -

Firstly, that there has been acquiescence on the part of the body corporate in not taking steps to remove the animal for a reasonable period of time. For example, the body corporate has failed to act on the matter for some time causing the owner to assume implicit approval for keeping the animal. The basis for this exception is that it would be harsh and inequitable for an owner to have to remove an animal that they have been allowed to keep over a period of time.

Secondly, that the body corporate is acting in a discriminatory manner in seeking to remove the animal. Discrimination in this context can take various forms. The clearest example is where the committee refuses the request of one owner to keep an animal but grants approval to another, and there is no logical or reasonable basis for the distinction to be made. An alternative example is where the body corporate seeks an order against one owner keeping an animal when there are one or more other owners who are also keeping animals on the scheme, again with no logical or reasonable basis for the different treatment. The basis for this exception is obviously that bodies corporate must treat all owners equally.

5. Conclusion

For the reasons outlined previously, I intend to dismiss the application as sought by the applicant.

From the material before me, it appears that at present, the applicant does not have approval to keep an animal on scheme land. Both the committee, and the body corporate at the annual general meeting held on 20 January 2002 have refused to grant the applicant permission to keep an animal on scheme land. I am of the view that until such time as the body corporate provides approval, or alternatively, an order of an adjudicator is made authorising the applicant to keep an animal on scheme land, the applicant should not bring an animal onto the scheme land, or keep an animal on scheme land.

In the circumstance, if disputes continue regarding the keeping of animals on scheme land, an affected party is entitled to make a further application to this office, perhaps seeking more specific orders that the animal or animals in question be permitted to stay on scheme land, or alternatively that the animals in question be removed.